Motion to Vacate (28 U.S.C. § 2255) - Review Standard;

Arson (18 U.S.C. § 844) - Interstate Commerce Element;

Jurisdiction;

Plea Agreement - Stipulation

United States v. Tush, 01-3360 (May 3, 2002)

Tush appeals the denial of his motion to vacate sentence pursuant to 28 U.S.C. § 2255. Although the district court denied the motion, it issued a certificate of appealability. Tush was charged with arson of real property owned and possessed by the United States, arson of the building used in an activity affecting interstate commerce, and unlawful possession of a firearm by a convicted felon. Pursuant to a plea agreement he pleaded guilty with respect to a church fire under 18 U.S.C. § 844(i), and the government moved to dismiss the other charges. He was sentenced to 60 months imprisonment. He did not file a direct appeal, but instead, filed a § 2255 motion urging that the district court did not have jurisdiction to sentence him because, under Jones v. United States, the Full Gospel Tabernacle Church was not a building used in interstate commerce under § 844(i). The district court found that Tush was not procedurally barred, but denied the motion on the merits, relying on the Church's out-of-state visitors to establish use of a building in an activity affecting interstate commerce. In the plea agreement, Tush stipulated that the Church was used in an activity affecting interstate commerce.

HELD: (1) The court reviews the district court's legal rulings on a § 2255 motion de novo and its finding of fact for clear error. Under Jones, the Supreme Court held that an owner-occupied residence, not used for any commercial purpose, does not qualify the property as used in commerce or in a commerce-affecting activity. The proper inquiry is into the function of the building itself and then a determination of whether that function affects interstate commerce. The circuit has held that Jones did not foreclose a § 844(i) prosecution for arson of a church, where the defendant made an unqualified stipulation that the church was used in an activity affecting interstate commerce. United States v. Grassie. The interstate commerce element of § 844(i) is not jurisdictional in the sense that it affects a court's subject matter jurisdiction. Tush mistakes an essential element of the crime with a jurisdictional requirement. The district court's subject matter jurisdiction arose from 18 U.S.C. § 3231. By stipulating, Tush relieved the government of its burden of proving the interstate commerce element.

Hobbs Act (18 U.S.C. § 1951) - Interstate Commerce Element;

Appellate Review - One Panel Cannot Overrule Another, Failure to Object Below Requires Plain Error Review;

Firearms (18 U.S.C. § 924) - Consecutive Sentences Required for Hobbs Act and Use of Firearm Resulting in Death;

Statutory Interpretation;

Sentencing - Consecutive Sentence Under 18 U.S.C. § 924(j) for Use of Firearm Resulting in Death;

Double Jeopardy;

Acceptance of Responsibility - Third Level Reduction

United States v. Battle, 01-3154 (May 8, 2002)

(Vicki Mandell-King, FPD, Denver, Colorado)

Battle appeals from his conviction and sentence imposed for Hobbs Act robbery, and for causing the death of Edward Lee by use of a firearm during commission of a robbery in violation of 18 U.S.C. § 924(c)(1) and (j)(1).

HELD: (1) The fact that a robbery may have had only a de minimus affect on interstate commerce does not render regulation of that activity an unconstitutional exercise of Congressional power. The contrary argument has been rejected by different panels of the court, and absent an intervening change in the law or en banc review, one panel cannot overturn the judgment of another.

(2) Battle's claims that the district court erred in sentencing him to consecutive sentences for the Hobbs Act robbery and the use of a firearm resulting in death were not raised below and are subject to the plain error standard of review.

(3) Section 924(c) requires consecutive sentences. The circuit disagreed that § 924(j) sets forth a different crime. The plain meaning of § 924(j) provides that, if evidence shows a violation of § 924(c), a district court must impose a consecutive sentence. The failure of Congress to repeat the prohibition against concurrent sentences in § 924(c) does not demonstrate that Congress determined that the penalty in § 924(j) should not be imposed consecutively. The rule of lenity does not apply when Congressional intent is unambiguous. Battle's interpretation of § 924(j) would lead to the odd result that a defendant convicted of violating § 924(c) is subject to a consecutive sentence only in a situation that did not result in death caused by the firearm. The circuit agreed with the Eighth Circuit's Allen decision.

(4) The district court did not violate the double jeopardy clause in imposing multiple punishments.

(5) Battle's claim regarding the third-level reduction for acceptance of responsibility is reviewed for plain error. The government disputed the grant of the two level reduction of acceptance of responsibility. Thus, acceptance of responsibility was a factual dispute that does not rise to the level of plain error.

(6) Given the court's determination about § 924(c) and (j), Battle's argument about misapplication of the guidelines is misplaced.

Civil Rights Action (42 U.S.C. § 1983);

Judgment - Rule 58 Requires Separate Document, Time to Appeal;

Medical Care;

In Forma Pauperis - Three Strikes Under 28 U.S.C. § 1915

Thompson v. Gibson, 01-7134 (May 14, 2002)

The district court dismissed Thompson's § 1983 action as frivolous. Thompson is serving a sentence of 2000 years in the Oklahoma State Penitentiary. He filed his § 1983 action alleging Eighth and Fourteenth Amendment violations. The district court found Thompson failed to exhaust his administrative remedies as to injunctive relief, and that his claims were without merit with regard to monetary damages.

HELD: (1) Rule 58, F.Civ.P., provides that every judgment shall be set forth on a separate document. The time to appeal runs from entry of the Rule 58 judgment. Rule 58 should be interpreted to preserve an appeal, and the lack of a final judgment in this case means that the time for filing a notice of appeal has yet to run. The court has jurisdiction. The court stressed that the district court should abide by Rule 58, and enter a final judgment on a separate document when all outstanding issues are resolved.

(2) The court can uphold the district court's decision on any ground legally supported by the record. The court did not address the administrative exhaustion claims. Because Thompson's claims are frivolous, it would be pointless to remand.

(3) A prison must provide adequate food and medical care to inmates. A medical need is serious if it has been diagnosed by a doctor or if it would be obvious to a lay person that doctor intervention is needed. No § 1983 action can be brought unless a plaintiff has suffered physical injury in addition to mental and emotional harm. Thompson has not claimed that the defendants had treated him differently because of any suspect classification. Nor has he proven for purposes of the equal protection clause that the distinction between himself and others was not reasonably related to some legitimate penalogical purpose.

(4) The district court's dismissal of the complaint counts as a strike under 28 U.S.C. § 1915(e)(2)(B). If Thompson accrues three strikes, he will no longer be able to proceed in forma pauperis in any civil action in federal court unless he is in imminent danger of physical injury. 28 U.S.C. § 1915(g).

Motion to Suppress - Review Standard;

Search Warrant - Probable Cause in Affidavit, Exception - Car and Plain View

Arrest - Probable Cause

United States v. Sparks, 01-7097 (May 24, 2002)

In this case, the United States appealed the district court's grant of a motion to suppress evidence obtained during the searches of Sparks' vehicle and residence. The circuit reversed and remanded.

HELD: (1) In reviewing a motion to suppress, the court accepts the district court's fact findings unless clearly erroneous, reviews questions of law de novo, and views the evidence in the light most favorable to the prevailing party.

(2) In determining whether a search warrant is supported by probable cause, the court reviews the sufficiency of the affidavit, upon which a warrant is issued, by looking at the totality of the circumstances and insuring that the magistrate had a substantial basis for concluding that probable cause existed. Probable cause to issue a search warrant exists only when the supporting affidavit sets forth facts that would lead a prudent person to believe there is a fair probability that contraband or evidence of a crime will be found in a particular place. The district court erred in characterizing the June 2, 1999 arrest as invalid. The question is the degree of suspicion that attached to Sparks' actions in retrieving the bag on a side of a public road in plain view. Although Sparks' actions could have been innocent, a prudent, trained police officer more likely would have construed those actions as indicating that Sparks was familiar with and had some connection to the bag containing the methamphetamine. Probable cause existed for the arrest.

(3) The district court also erred in holding that the detective lacked a reasonable basis for believing that Sparks lived in the residence identified in the search warrant. The detective had a reasonable basis for believing that Sparks resided in the house located outside the city limits. Therefore probable cause existed for the search warrants. It was reasonable for the detective to believe that additional evidence would be found in the nearby residence.

(4) The search of Sparks' truck implicates two key exceptions to Fourth Amendment's warrant requirement. The Supreme Court has held that police officers who have probable cause to believe there is contraband inside an automobile that has been stopped on the road may search it without obtaining a warrant. This justification for a search does not vanish just because the vehicle has been immobilized. The second exception is the plain view doctrine, which allows an officer to seize evidence without a warrant if the officer was lawfully in a position from which to view the objects seized in plain view, the object's incriminating character was immediately apparent and the officer had a lawful right of access to the object itself. One question is whether the small bags on the front seat were in plain view. Sparks was arrested at the rear end of the truck and the detective did not observe the bags until after Sparks' arrest. But anyone walking by the truck could have observed the bags. Sparks left the driver's side door of his truck open, and had no legitimate expectation of privacy shielding that portion of the interior of his truck. It was reasonable to conclude the bags were of an incriminating character. Thus, the search of the truck on May 16, 2001 was legal. Therefore, information regarding the results of that search could have been considered in preparing the affidavit and in issuing the search warrant. There was also a significant amount of additional evidence to bolster the affidavit and probable cause determination.

Aliens (§2L1.1) - Multiple Victims and Deaths;

Upward Departure - Discretion Standard, Four Part Test, Encouraged Factors, Heartland, Degree of Departure

United States v. Jose-Gonzales, 01-1261 (May 28, 2002)

(Raymond P. Moore, Jenine Jensen, FPD, Denver, Colorado)

Gonzales appeals his sentence for transporting unlawful aliens. The district court departed upward to account for multiple deaths and injuries resulting from the defendant's criminal conduct. At a non-jury trial, defendant stipulated he knew the passengers were unlawful aliens, that three had been killed, and that others had been seriously injured. He disputed whether he committed the offense for commercial advantage or private financial gain. The court found mercenary motive and convicted him.

HELD: (1) Under 2L1.1(a)(2), the base offense level was 12. The court increased that by several adjustments, including recklessly creating a substantial risk of death or serious bodily injury. The court added additional levels because a death resulted. The guideline range was 63 to 78 months. The district court determined that an upward departure was warranted because of multiple injuries and deaths. The court increased the offense level from 26 to 31, and the guideline range was 108 to 135 months. The court imposed a 120-month sentence.

(2) A court may depart from the guidelines because of circumstances not adequately taken into consideration by the Commission. This court considers whether the factual circumstances supporting a departure are permissible factors, whether the factors remove the defendant from the heartland, whether the record sufficiently supports the factual basis, and whether the degree of departure is reasonable. Review is under a unitary abuse of discretion standard. Whether the factual circumstances are permissible is a legal question reviewed de novo. The district court departed based on multiple injuries and deaths not accounted for under §2L1.1. Even though the court's oral remarks touched on evidence of recklessness, the court stated that, even eliminating this specific offence characteristic, the ultimate result would be the same. The guidelines encourage consideration of death and significant physical injury as grounds for departure. The court is authorized to depart for such encouraged factors as long as the guidelines do not already take them into account. The guidelines do not take into account multiple deaths or injuries.

(3) The next question is whether the factors remove the case from the heartland of the guidelines. The question of what constitutes a guideline's heartland is legal in nature, but the district court has the responsibility to determine the factual circumstances that define the heartland. The defendant argues that this case is not atypical of alien transportation cases. The circuit held that this issue is one on which it should defer to the district court, and found no abuse of discretion in the district court's finding that the case was outside the heartland.

(4) The court applies a clearly erroneous standard to review the factual determinations underlying the decision to depart. The defendant does not contest the factual determinations.

(5) As to the extent of the departure, review is deferential. A statement of the factual basis for the departure is not in itself sufficient. The sentencing court must articulate the reasons for the degree of departure. The district court treated the transportation of each killed and seriously injured passenger as a separate pseudo-count and then determined the offense level under §3D1.4. The methodology was therefore hitched to the guidelines. The defendant's argument fails to consider that the grouping rules may not be mandatory in his case. The guidelines reflect a commitment not to group offenses having different human victims. The circuit therefore disagreed with the argument that the district court miscalculated what the combined offense level would have to be if he had been prosecuted on separate counts for each alien.

Video Conferencing - Violates Rule 43's Requirement of a Defendant's Presence

United States v. Torres-Palma, 01-2179 (May 16, 2002)

In this case, the jury was picked by a local judge, but the case was tried in New Mexico by a judge from outside the district. Certain motions were considered by New Mexico judges, and not the trial judge. After the verdict was entered, the trial judge returned to his home district. He was unable to return to New Mexico to pronounce the sentence and concluded that video conferencing would be appropriate. The defendant objected under Rule 43, which requires the presence of the defendant at every stage, including imposition of sentence, except as otherwise provided by the rule.

HELD: (1) The circuit found persuasive the analyses of Navarro and Lawrence that does not support a flexible reading of Rule 43, even to accommodate logistical burdens. The circuit believes the only relief is redrafting of the language of Rule 43. Until that time, video conferencing for sentencing is not within the scope of a district court's discretion. Rule 43 vindicates a central principle of the criminal justice system, violation of which is per se prejudicial, and therefore presence or absence of prejudice is not a factor.

(2) Appellant failed to establish there was an order requiring a presentence psychological examination that was subsequently violated.

Amount of Drugs - Preponderance, Government's Burden,

Judicial Notice (Rule 201)

United States v. Boyd, 01-3142 (May 16, 2002)

(David J. Phillips, FPD, Topeka, Kansas)

Boyd pleaded guilty to distribution of 9.48 grams of crack cocaine. Other counts were dismissed. Boyd was sentenced under §2D1.1(c), and the court considered the total weight of drugs in the indictment as relevant conduct. At the sentencing hearing, Boyd presented expert testimony in the form of a report suggesting that the weight of the drugs was 49.81 grams. The government countered with a lab report by the Kansas Bureau of Investigation.

HELD: (1) The government must prove the existence of additional quantities by a preponderance of the evidence.

The district court never reached the issue about whether the evidence rested in equipoise. The district court concluded that the weight of the drugs was 53.15 grams but did not base this conclusion on balancing of the credibility of the conflicting reports. The district court discovered in caselaw four reasons why narcotic quantity may decrease over time: the possibility of static cling by which a quantity of the narcotic may be lost, possibility that government purity testing would consume a quantity of the drugs, possibility of evaporation, and possibility that atmospheric conditions would affect the measurements. Having uncovered the reasons why an earlier in time measurement may prove more accurate then a measurement performed later, the district court concluded that there was no conflict between the two expert reports and that the government's measurement should be credited because it was earlier.

(2) A court is ordinarily limited by the record before the court and therefore a fact finding is clearly erroneous when not based on record evidence. Rule 201 provides an exception, whereby the court may take judicial notice of a particular fact where that fact is not subject to reasonable dispute, because it is generally known within the territorial jurisdiction of the trial court, or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. The United States failed to introduce any evidence suggesting that the earlier in time measurement was more likely to be accurate. This is in marked contrast to the cases relied on by the district court, each of which referred to expert testimony that one or more of the proffered explanations applied to the facts of that case. In this case, judicial notice is not appropriate because the science and technology of narcotic collection, measurement, and storage are far too uncertain to permit the conclusion without production of any evidence that the passage of eight months necessarily harmonizes two different measurements. Judicial notice is not appropriate when so many variable are in play. To permit judicial notice of such a fact would effectively prevent a criminal defendant from ever successfully challenging the quantity of narcotics attributed to the defendant.

Search of Residence - Exigent Circumstances

United States v. Davis, 01-3291 (May 16, 2002)

(Ronald E. Wurtz, FPD, Topeka, Kansas)

The district court granted Davis' motion to suppress 58 grams of crack cocaine and three firearms seized from his home. The district court found no exigent circumstances to justify the officers' warrantless search of Davis' home.

HELD: (1) The existence of exigent circumstances is a mixed question of law and fact. Although the court accepts underlying fact findings unless clearly erroneous, the determination of whether those facts satisfy the legal test of exigency is subject to de novo review. The physical entry of a home is the chief evil against which the wording of the Fourth Amendment is directed. Probable cause accompanied by exigent circumstances will excuse the absence of a warrant. The burden is on the government to demonstrate exigent circumstances. There was no evidence to indicate the officers believed Davis had a reputation for violence. Nor had he displayed a threatening or aggressive manner when initially contacted. While he lied about Ms. Coleman's whereabouts, any concern that lie might have effected was allayed when she appeared. The only manifestation of resistance by Davis was his insistence upon keeping the officers outside. Even Coleman, the suspected victim, was trying to prevent the officers from entering Davis' residence. In addition, the officer knew that Davis had children so his withdrawal from police presence should have been unthreatening. The court gives substantial weight to police knowledge of a defendant's history prior to the incident under inquiry. Granting unfettered permission to officers to enter homes based upon a general assumption that domestic calls are always dangerous would violate the Fourth Amendment.

Supervised Release - Violation, Sentence

United States v. Swenson, 01-4179 (May 17, 2002)

Swenson pleaded guilty to one count of bank larceny. Originally the district court had sentenced him to 21 months in prison followed by a three-year term of supervised release. He was found in violation of that supervised release, and sentenced to 10 months in prison with a 31 month term of supervised release. He was again found in violation of supervised release, and the court sentenced him to 24 months in prison.

HELD: (1) The latest sentence of 24 months exceeds the statutory maximum of two years allowed under 18 U.S.C. § 3583(e)(3) for a Class C felony. The district court failed to aggregate all the terms of imprisonment for violations of supervised release stemming from the same underlying conviction. It is a question of first impression in this circuit whether the district court should deduct the prior term of imprisonment imposed on Swenson's first violation of supervised release. All the circuits that have reached this question agree that the sentences should be aggregated in calculating the two year statutory maximum.

Habeas Corpus (28 U.S.C. § 2254) - AEDPA, Death Sentence;

First Degree Felony Murder - State Law, Kidnapping for Extortion;

Procedural Bar - Not Apply When State Court Reaches Merits, Cause and Prejudice,

Retroactive Application of judicial Decision;

Exhaust State Remedies;

Evidentiary Hearing;

Appoint Investigator;

Prosecutorial Misconduct - Improper Comments;

Jury - Sense of Responsibility, Caldwell;

Admission of Evidence - Fair Trial, Victim's Attributes

Penalty Phase - Victim's Attributes, Unadjudicated Offenses

Hawkins v. Mullin, 00-6204 (May 22, 2002)

(Scott W. Braden, FPD, Oklahoma City, Oklahoma)

Hawkins appeals the denial of habeas relief sought pursuant to 28 U.S.C. § 2254 from his Oklahoma first degree felony murder conviction and death sentence.

HELD: (1) The AEDPA standard of review applies.

(2) The federal court is bound by the state court's interpretation of its own law on first degree felony murder. The question is whether it was foreseeable that the state court would interpret Oklahoma law to include kidnapping for extortion as a felony that would support a first degree felony murder conviction. Hawkins did not challenge this at trial or on direct appeal. Hawkins applied for state post-conviction relief. The OCCA held that the Oklahoma legislature intended, by its reference to kidnapping, to including kidnapping for extortion as a felony that would support a first degree felony murder conviction. The OCCA rejected earlier decisions to the contrary.

(3) When a state court decides an issue on the merits, state procedural bar will not preclude federal habeas review. Hawkins adequately asserted a federal basis for relief, referring to due process and the Eighth Amendment. He presented the essential substance of his claim on state post-conviction. Because the state appellate court did not specifically address foreseeability of its decision, review is de novo.

(4) A criminal statute must give fair warning. Oklahoma's first degree felony murder statute is not narrow and precise, and therefore Hawkins cannot say that he had no reason to suspect that if he killed someone during the course of kidnapping for extortion he would not be punished for first degree felony murder. In addition, most kidnappings for extortion could also be charged simply as kidnapping.

(5) The question is whether the state court's construction is so unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue as to prevent retroactive application. Oklahoma's construction of its felony murder statute is not so unexpected and indefensible as to make its application violative of due process. The OCCA did not decide the Richie case until after Hawkins had committed the crimes at issue. Prior to Richie, kidnapping for extortion would have supported a capital felony murder conviction.

(6) In order to exhaust state remedies, a federal habeas petitioner must have first fairly presented the substance of his federal habeas claim to state court. Hawkins' state court claims regarding ineffective assistance focused on trial court actions and he raised different arguments in federal habeas. Therefore he never fairly presented the substance of his federal claim to state court. While a habeas petitioner might still be able to present in federal court bits of evidence not previously presented in state court, he cannot first present evidence in the federal habeas proceeding that places the claims in a significantly different legal posture without first presenting the evidence in state court.

(7) Even if Hawkins had exhausted his ineffective assistance claim, he would still not be entitled to a federal evidentiary hearing because he does not fit within the AEDPA provisions governing such hearings.

(8) Hawkins' claim remains unexhausted and the Oklahoma courts will deem it procedurally barred. He does not assert either cause and prejudice or fundamental miscarriage of justice.

(9) Hawkins prior to trial asked the court to appoint an investigator. This was denied. A state must provide an indigent defendant with the basic tools to present an adequate defense. The court considers the effect on the defendant's private interest in the accuracy of the trial if the requested service is not provided, the burden on the government's interest if the service is provided, and the probable value of the additional service and risk of error in the proceeding of such assistance is not offered. The state appellate court's determination that Hawkins failed to establish prejudice was reasonable.

(10) Hawkins argues the trial court should have excluded five year old Lori Thompson's testimony. The question is whether admission of this testimony resulted in a fundamentally unfair trial. In state court, Hawkins only challenged this testimony on state law grounds. Therefore he has never fairly presented the substance of his federal claim to state court and the claim remains unexhausted.

(11) Hawkins claims prosecutorial misconduct through improper comments. Where the alleged misconduct does not implicate a specific constitutional right, Hawkins will be entitled to habeas relief only if the prosecutor's challenge remark, viewed in the light of the trial as whole, resulted in a fundamentally unfair proceeding. On the other hand, if the comment implicated a specific constitutional right, Hawkins need not establish that the remark rendered the entire proceeding fundamentally unfair. Hawkins presented these federal claims to the state court, but the OCCA specifically addressed only some of them.

(12) Caldwell precludes improperly diminishing a capital jury's sense of responsibility for imposing a death sentence.

(13) The prosecutor did not err in referring to evidence where the state court admitted it at trial.

(14) At trial, the state presented evidence of the victim's attributes as a mother and her personal history, and later incorporated that evidence in the sentencing phase. The circuit could not say that it was fundamentally unfair to admit this evidence at either stage.

(15) In the penalty phase, the court admitted evidence of unadjudicated criminal conduct. The circuit has previously upheld use of unadjudicated offenses in a capital proceeding. Apprendi does not alter this line of cases. Oklahoma's capital sentencing procedure requires the state to charge and prove to a jury beyond a reasonable doubt the existence of at least one aggravating factor. Those requirements satisfy Apprendi.

Aid and Abet (18 U.S.C. § 2);

Sufficient Evidence;

Use of Telephone (21 U.S.C. § 843) - One Violation

United States v. McGee, 01-5076 (May 29, 2002)

McGee was found guilty of conspiracy to possess PCP, causing another person to unlawfully possess it, and using a communication facility to facilitate the commission of a felony. The district court granted McGee's motion to arrest judgment on count one. He was sentenced to life on count two and 56 years on count three.

HELD: (1) McGee claims his conviction for causing another to unlawfully possess PCP cannot stand because Hampton did not know she was carrying PCP and therefore lacked the requisite intent. The court denied this claim holding that the underlying § 841 conviction requires the government to prove that McGee knowingly or intentionally possessed with intent to distribute PCP. Under 18 U.S.C. § 2(b), a defendant who willfully causes an act to be done, which if directly performed by him or another, would be an offense against the United States is punishable as principle. Therefore, the government must prove the defendant had the mental state necessary to violate the underlying criminal statute, and that the defendant willfully caused another to commit the necessary act. The government need not prove that someone other than the defendant was guilty of the substantive crime. The intent of the person actually performing the proscribed act is immaterial.

(2) Whether the evidence is sufficient to establish that McGee had the requisite intent is the question reviewed de novo, viewing the evidence in the light most favorable to the government. The evidence was sufficient.

(3) A violation of § 843(b), use of a telephone to facilitate the commission of a § 841(a) felony, has a maximum statutory sentence of 8 years. Contrary to the indictment, the revised PSR treated count three as having charged one violation for each of seven phone calls and the court imposed eight year sentences with respect to each phone call for a total of 56 years. The court reviews the district court's fact findings regarding sentencing for clear error and reviews its legal interpretation de novo. The government agrees that the maximum possible sentence on count three is eight years because the indictment only charged McGee with one violation.

Wiretap - Necessity Requirement, Material Omission in Affidavit, Early Plans for Wiretap, Chart

United States v. Ramirez, 01-1030 (May 29, 2002)

(Nancy Holton, Boulder, Colorado)

Ramirez pleaded guilty to one count of using a communication facility to facilitate a felony in violation of 21 U.S.C. § 843(b). This appeal is from the district court's denial of a motion to suppress.

HELD: (1) The standard of review for determining whether a wiretap application satisfies the necessity requirement is as follows: the court examines de novo whether a full and complete statement was submitted, meeting § 2518(1)(c)'s requirement, and reviews the conclusion that the wiretap was necessary in each situation for an abuse of discretion.

(2) The defendant bears the burden of proving that a wiretap is invalid once it has been authorized. To prove a wiretap is necessary, the government must show that traditional investigative techniques have been tried unsuccessfully, reasonably appear to be unsuccessful if tried, or are too dangerous to attempt. If any of these traditional techniques have not been tried, the government must explain why. The government must also explain a failure to use such techniques as pen registers or track and trace devices. The court will consider all the facts and circumstances to determine whether the government's showing of necessity is sufficient to justify a wiretap. The court reads the necessity requirement in a common sense fashion. The district court did not abuse its discretion in finding that the government had made an adequate showing of necessity.

(3) If the government makes material omissions in the affidavit, the resulting evidence must be suppressed. The fact that there were early plans for a wiretap did not prevent the DEA from diligently pursuing the investigation prior to the wiretap. The fact that the government did not include a chart does not prove that the agent misled the court when she indicated a wiretap was needed. The diagram was likely a product of previous investigatory work and also projections and guesses. In addition, several persons not listed on the chart were indicted, so the chart did not comprehend the full scope of the conspiracy. The information from the chart was included in the affidavit, and therefore the exclusion of the chart was not a material omission.

(4) The court also rejected the argument that the agent had failed to disclose that she would bring in several more agents to assist in the investigation after the wiretap was granted. In addition, Butler did include the fact that a warrant was executed on the house of another individual in the affidavit. Also contrary appellant's allegation, the affidavit stated that co-conspirators were cooperating with authorities. Other arguments are unsupported by the evidence.